Citation Nr: 1037174
Decision Date: 09/30/10 Archive Date: 10/05/10
DOCKET NO. 09-50 025 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an initial rating in excess of 30 percent for
chronic obstructive pulmonary disease (COPD) with restrictive
airway disease.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
H. Bunker, Associate Counsel
INTRODUCTION
The appellant served on active duty from September 1948 to
September 1952.
This case comes before the Board of Veterans' Appeals (Board) on
appeal from a March 2009 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran contends that his currently diagnosed COPD warrants a
higher evaluation than 30 percent.
The Veteran was afforded a VA medical examination in July 2008
and April 2010 to evaluate his COPD. At both of these
examinations, the Veteran received pulmonary function tests which
included testing of his forced vital capacity and forced
expiratory volume in one second. However, neither VA examiner
used the diffusion capacity of the lung for carbon monoxide by
the single breath method. (DLCO (SB)) While the examiner can
evaluate the Veteran's pulmonary functioning using alternative
criteria, if the DLCO (SB) is not of record, the examiner must
state why this test would not be useful or valid in this
particular case. See 38 C.F.R. § 4.96(d)(2).
The Board finds that while the July 2008 and April 2010 VA
examiners used appropriate alternative pulmonary functioning
tests, neither examiner gave an opinion as to why the DLCO (SB)
test would not be useful or valid in this particular case. Id.
The Court of Appeals for Veteran Claims (Court) has held that
once VA undertakes a duty to provide a medical examination, due
process requires VA to notify the claimant prior to the
adjudication of the claim of any inability to obtain evidence
sought (including a VA examination with medical opinion). See
Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves
v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v.
Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi,
15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return
an inadequate examination report "if further evidence or
clarification of the evidence... is essential for a proper
appellate decision"). As the July 2008 and April 2010 VA
examiners did not use the DLCO (SB) test and did not offer any
opinions as to why the DLCO (SB) test would not be useful or
valid in this particular case, the claim must be remanded.
The Board further notes that the most recent VA treatment records
in the claims file are from December 2009. On remand, the RO
should make efforts to obtain all outstanding treatment records
at any VA treatment facility from December 2009 through the
present.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
1. Obtain all of the Veteran's outstanding VA
treatment records for the period from
December 2009 through the present. All
information which is not duplicative of
evidence already received should be
associated with the claims file. If the
AOJ is unable to obtain any of the relevant
records sought, it shall notify the Veteran
that it has been unable to obtain such
records by identifying the specific records
not obtained, explaining the efforts used
to obtain those records, and describing any
further action to be taken with respect to
the claim. 38 U.S.C. § 5103A(b)(2) (West
2002).
2. Refer the claims file, with any additional
evidence, to the April 2010 VA examiner for
an addendum opinion regarding the DLCO (SB)
test. Specifically, if the examiner finds
the test was not necessary, he or she
should state why the DLCO (SB) test would
not be useful or valid in this particular
case. In the alternative, if necessary,
the examiner should perform the DLCO (SB)
test and any additional appropriate tests.
If the April 2010 VA examiner is no longer
available, request an opinion, with the
option for an examination, from an
appropriate examiner. The claims file,
including a copy of this REMAND, must be
made available for review, and the
statement should reflect that such a review
was accomplished. See 38 C.F.R.
§ 4.96(d)(2).
It would be helpful if the examiner would
use the following language, as may be
appropriate: "more likely than not"
(meaning likelihood greater than 50%), "at
least as likely as not" (meaning likelihood
of at least 50%), or "less likely than not"
or "unlikely" (meaning that there is less
than 50% likelihood). The term "at least
as likely as not" does not mean "within the
realm of medical possibility." Rather, it
means that the weight of medical evidence
both for and against a conclusion is so
evenly divided that it is as medically
sound to find in favor of that conclusion
as it is to find against it. A detailed
rationale should be provided for all
opinions.
3. After completing the above, and any other
development deemed necessary, the AOJ
should readjudicate the claim for an
increased rating. If the benefits sought
on appeal are not granted, the Veteran and
his representative should be furnished
with a supplemental statement of the case
and afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).